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Friday, July 1, 2011

Panel Discusses Pro-Business Bias in Supreme Court

The American Constitution Society held its 2010-2011 Supreme Court Review panel yesterday. Quinn Emanuel partner Kathleen Sullivan moderated the discussion, which centered on whether or not this Supreme Court term supported the idea that the Roberts Court is pro big business. The panel members included H. Christopher Bartolomucci, a Bancroft partner; Lucas Guttentag, Senior Counsel for the American Civil Liberties Union Immigrants’ Rights Project; Erica Hashimoto, a professor at the University of Georgia School of Law; Suzette Malveaux, a professor at the Columbus School of Law at Catholic University; Paul Smith, a Jenner & Block partner; and Allison Zieve, the director of the Litigation Group at Public Citizen.

The panelists discussed several cases this term and expressed their views on whether or not, overall, the current Court was biased in favor of large corporations. The decisions involving class actions particularly showed the Court’s bias towards big business. Malveaux was asked to speak on the subject as one of her areas of study is class actions. She said that the Court’s decisions in AT&T Mobility v. Concepcion and Wal-Mart v. Dukes have restricted plaintiffs’ ability to have their day in court in consumer and employment cases. The AT&T case involved a contractual ban on class actions and a requirement that customers arbitrate their disputes with the company – a combination that the California court found unconscionable. The Supreme Court reversed and held that the provisions were permissible. Malveaux predicted that more and more corporations will now use forced arbitration provisions and class action bans in contracts with customers, denying them access to justice.

Malveaux also discussed the Wal-Mart case, calling it “devastating for employees.” She said that the conservative justices made it harder for plaintiffs to bring class actions because after this decision, employees suing their employers over discrimination will need more evidence. Because of this new standard, the employees in this case did not even have the opportunity to bring their lawsuit into court; the Supreme Court decided there was not enough proof for them to form a class. Looking at this decision and the AT&T decision, Malveaux concluded that the Court favored big business in procedural aspects of class actions.